FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAKI KAAHUMANU; MAUI
WEDDING AND EVENT PROFESSIONALS
ASSOCIATION, a non-profit
organization,
No. 10-15645
Plaintiffs-Appellants,
D.C. No.
v.
1:09-cv-00036-SPK-
STATE OF HAWAII, DEPARTMENT OF BMK
LAND AND NATURAL RESOURCES;
OPINION
WILLIAM J. AILA, JR.,
Chairperson*; DOES 1-5,
INCLUSIVE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, Senior District Judge, Presiding
Argued and Submitted
February 16, 2011—Honolulu, Hawaii
Filed June 6, 2012
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge William A. Fletcher
*William J. Aila, Jr., is substituted for his predecessor Laura Thielen,
as Chairperson of the Board of DLNR, pursuant to Fed. R. App. P.
43(c)(2).
6307
KAAHUMANU v. STATE OF HAWAII 6311
COUNSEL
James Harry Fosbinder, IVEY FOSBINDER FOSBINDER
LLC, Wailuku, Hawaii, for the appellants.
William Joseph Wynhoff, OFFICE OF THE HAWAII
ATTORNEY GENERAL, Honolulu, Hawaii, for the appel-
lees.
6312 KAAHUMANU v. STATE OF HAWAII
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs are Laki Kaahumanu, a Native Hawaiian pastor
who performs religious wedding ceremonies, and Maui Wed-
ding and Event Professionals Association (“Event Profession-
als”), an association of individuals and businesses providing
commercial services for weddings. Defendants are the State
of Hawai’i Department of Land and Natural Resources
(“DLNR”), which manages, controls and administers public
lands in Hawai’i, and William J. Aila, Jr., Chairperson of the
Board of DLNR.
Plaintiffs bring a First Amendment and other constitutional
challenges to regulations and associated guidelines that
require permits for “commercial weddings” on public beaches
in Hawai’i. We uphold the regulations and guidelines in all
respects but one.
I. Background
Over 200 public beaches in Hawai’i are under DLNR’s
jurisdiction. See Beaches, Hawai’i Department of Land and
Natural Resources, available at http://hawaii.gov/dlnr/land/
forms-1/WikiPermitLocations.pdf (last visited Feb. 10, 2012)
(listing beaches). These include such beautiful beaches as
Wailea Beach on Maui; Waimea Bay Beach on Oahu; and
Papohaku Beach on Molokai. Many commercial companies
provide services for recreational activities on Hawai’i’s
beaches. During the late 1990s and early 2000s, these services
were largely unregulated, with the result that some public
beaches became congested by commercial enterprises. For
example, kayak and surf schools stored equipment on and
operated from public beaches, and hotels set out chairs and
umbrellas in the morning before the general beach-going pub-
lic arrived.
KAAHUMANU v. STATE OF HAWAII 6313
In November 2002, DLNR began to regulate commercial
activities on “unencumbered” public beaches. Unencumbered
lands are public lands, including beaches, that have not been
“(1) Set aside for any purpose, by statute, executive order, or
other means to a governmental agency; or (2) Encumbered by
lease, license, permit, easement, or other document issued by
[DLNR].” Haw. Rev. Stat. § 171-1. Beaches within the juris-
diction of DLNR extend from the water’s edge to the high-
tide line. See In re Ashford, 440 P.2d 76, 77 (Haw. 1968)
(holding that public lands extend to “upper reaches of the
wash of waves, usually evidenced by the edge of vegetation
or by the line of debris left by the wash of waves”).
DLNR regulations provide, “No person shall engage in
commercial activities of any kind without a written permit
from the board or its authorized representative.” Haw. Admin.
Rules (“HAR”) § 13-221-35 (2011). “Commercial activity” is
defined as:
the use of or activity on state land for which com-
pensation is received by any person for goods or ser-
vices or both rendered to customers or participants in
that use or activity. . . . Commercial activities
include activities whose base of operations are out-
side the boundaries of the unencumbered state lands,
or provide transportation to or from the unencum-
bered state lands.
...
‘Compensation’ includes, but is not limited to, mon-
etary fees, barter, or services in-kind.
HAR § 13-221-2. On August 1, 2008, DLNR began to require
permits for “commercial weddings” under the regulations
already promulgated for other commercial activities.
An applicant seeking a permit for a commercial event,
including a wedding ceremony, may apply by mail or may use
6314 KAAHUMANU v. STATE OF HAWAII
a “Wiki Permits” website. Ninety-five percent of permit
applications are made through Wiki Permits. The welcoming
page of the website, entered into the record in the district
court, states, “Commercial activity for which a permit is
required would include a beach wedding, a baby christening,
the scattering of ashes, or the teaching of a hula class, as pos-
sible . . . . It is essential that all commercial activity for which
a permit is obtained comply with the General Terms and Con-
ditions for Commercial Activity.”
The Terms and Conditions provide that a permit can
reserve a “right-of-entry area” for no more than two hours.
The fee for a permit is $0.10 per square foot of the requested
beach area, with a minimum of $20 per “event.” An applicant
for a permit must obtain “comprehensive public liability
insurance,” naming the State of Hawai’i as an additional
insured, of “at least $300,000 per incident and $500,000
aggregate.” An applicant must also agree to indemnify and
hold harmless DLNR for loss or damage arising out of actions
by the applicant. No alcoholic beverages are allowed in the
permitted area. An applicant must agree to restore the beach
to its original condition after the event.
The Terms and Conditions provide further:
No accessories, structures, devices, amplified instru-
ments, appliances, apparatus or equipment of any
type whatsoever shall be placed on or within the
right-of-entry area or premises, including but not
limited to the following:
arches; bowers; alters [sic]; tables; chairs;
kahilis[1]; tents and or tarps; event signage
1
The record does not state what a Kahili is. The Bishop Museum, which
houses an extensive collection of royal Hawai’i artifacts, tells us that a
Kahili is a traditional feathered standard used in Hawai’i to depict status
or lineage. See Bishop Museum, Ethnology Database,
http://data.bishopmuseum.org/ethnologydb/type.php?type=handkahili (last
visited Feb. 6, 2012).
KAAHUMANU v. STATE OF HAWAII 6315
of any type including banners, sandwich
boards; kiosks or carts; stanchions, posts,
ropes or similar equipment for the purpose
of demarcation of the right-of-entry area;
and surfboards, windsurf boards, kayaks or
other ocean recreation equipment;
with the exception of the following:
loose flowers, leis, bouquets, corsages or
boutonnieres; unamplified musical instru-
ments, including a conch shell; doves or
butterflies for releases; a limited number of
chairs as strictly necessary for the support
of elderly, infirm, or disabled persons
attending the event(s); cameras and camera
equipment; other non-obtrusive hand-
carried wedding accessories; small podium
or cake stand, not to exceed three feet
square in size; and ocean vessels/equipment
used exclusively for the purpose of scatter-
ing ashes during authorized funeral ser-
vices.
The Terms and Conditions provide no limitation on the peo-
ple who may be involved in a wedding. Nor do they provide
any restriction on the apparel of participants, or any limitation
on what participants are allowed to say.
Paragraph 17 of the Terms and Conditions provides, “All
disputes or questions arising under this right-of-entry shall be
referred to the Chairperson [of the Board of DLNR] . . . . The
Chairperson’s decision shall be final and binding on the par-
ties herein.” Paragraph 18 provides, “The right-of-entry per-
mit is revocable and terminable at anytime for any reason in
the sole and absolute discretion of the Chairperson.” Para-
graph 21 provides that DLNR reserves “the right to impose
6316 KAAHUMANU v. STATE OF HAWAII
additional[ ] terms and conditions as it deems necessary or
appropriate while the right-of-entry is in force.”
Guidelines specifically addressed to commercial weddings
were published by DLNR in the form of answers to “Fre-
quently Asked Questions.” The answers provide, among other
things, “Weddings taking place on a state beach which have
any component that involves the receipt of compensation for
services or goods other than the services of a photographer
require a permit from the DLNR.” A permit is required even
if the only person paid in connection with the wedding is a
minister, priest, rabbi, or “other religious or nonprofit
entit[y].” A civil penalty of up to $5,000 may be levied for
failure to have a permit or for violation of the terms and con-
ditions of a permit. Weddings with as few as three people (the
wedding couple and a paid officiant) require a permit. The
two-hour maximum period of a permit “includes set up and
restoring the area after the event.” Permit holders have exclu-
sive occupancy of a “right-of-entry area” of the beach during
the period of the permit, but they may not reserve any particu-
lar area in advance. Permit holders “must find an open area
when they arrive at the beach” and cannot displace people
who are already on the beach.
Plaintiffs filed suit in the federal district court of Hawai’i
in January 2009, alleging that DLNR’s permit requirements
unduly burden their right to organize and participate in wed-
dings on unencumbered state beaches, in violation of the First
Amendment, equal protection, and due process. Plaintiffs con-
tend that the regulations and associated guidelines for com-
mercial weddings may not be constitutionally applied on any
unencumbered state beach in Hawai’i. On cross-motions for
summary judgment, the district court granted summary judg-
ment to DLNR. The district court held that unencumbered
beaches in Hawai’i are not a traditional public forum. In the
alternative, it held that even if such beaches are a traditional
public forum, DLNR’s regulations and associated guidelines
are reasonable time, place, and manner regulations.
KAAHUMANU v. STATE OF HAWAII 6317
Plaintiffs timely appealed.
II. Standard of Review
We review de novo a grant of summary judgment. Hargis
v. Foster, 312 F.3d 404, 409 (9th Cir. 2002). We conduct an
independent review of the facts in First Amendment cases.
Long Beach Area Peace Network v. City of Long Beach, 574
F.3d 1011, 1019 (9th Cir. 2009).
III. Discussion
A. Article III Standing
To establish standing under Article III, a plaintiff must
show that
(1) it has suffered an “injury in fact” that is (a) con-
crete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528
U.S. 167, 180-81 (2000).
DLNR challenges Plaintiffs’ Article III standing, contend-
ing that Plaintiffs have not been injured and do not face immi-
nent threat of injury. According to undisputed evidence
submitted by DLNR, more than 7,000 beach wedding permits
were granted in the year since the permitting requirements
were first applied to commercial weddings. Members of
Event Professionals have received more than 1,700 beach
wedding permits. No member has been denied a permit.
Plaintiffs who challenge a permitting system are not
required to show that they have applied for, or have been
6318 KAAHUMANU v. STATE OF HAWAII
denied, a permit. See Santa Monica Food Not Bombs v. City
of Santa Monica, 450 F.3d 1022, 1034 (9th Cir. 2006) (“That
[appellant] has never applied for a permit under the . . .
[o]rdinance does not destroy its standing.”). Plaintiffs must
only have declined to speak, or have modified their speech, in
response to the permitting system. See Ariz. Right to Life PAC
v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003).
Ronald Winckler, President of Event Professionals, states
that he has coordinated fewer weddings as a result of the per-
mitting requirements. Winckler states that “[h]anging over the
heads of the wedding professionals and their clients is the
threat of permitted weddings being cancelled arbitrarily and
without notice at the sole discretion of the DLNR.” He states
further that DLNR’s regulations have sparked negative com-
mentary on the internet and have made Hawaiian beach wed-
dings less desirable. Reverend Kahu Alalani Hill, a member
of Event Professionals, is the operator of Kuhina Hawaiian
Weddings and Blessings. He states that permitting fees and
insurance requirements have caused his wedding planning
rates to go up, and that fewer couples have decided to hire
him as a consequence. Hill also declares that DLNR’s prohi-
bition on the use of kahilis requires him to exclude them from
his wedding ceremonies.
Reverend Ayesha Sandra Lee Furumoto, a licensed minis-
ter and a wedding and reception planner on Maui, states,
“[W]e have lost weddings because prospective clients were
upset that they could no longer have arches or chairs on the
beach.” She states further, “Even though we obey the law and
buy permits, we have been twice confronted with DLNR men
in dark uniforms and guns to ask for permits, in [the] begin-
ning stages of weddings. We were legal but these incidents
marred the weddings and upset wedding clients a lot.” Rever-
end Eve Hogan does “only . . . a few weddings a month.” She
states, “[B]ecause I am a Reverend[,] they are quoting me
upwards of $500 a year” for insurance, whereas insurance for
wedding coordinators costs about $250 a year. Because of the
KAAHUMANU v. STATE OF HAWAII 6319
cost of insurance, Reverend Hogan declares, “I now have to
work with a coordinator every time I do a wedding in order
to get the permit.” It is not clear from the record whether
Furumoto and Hogan are members of Event Professionals.
[1] A plaintiff generally “may only bring a claim on his
own behalf, and may not raise claims based on the rights of
another party.” Pony v. Cnty. of L.A., 433 F.3d 1138, 1146
(9th Cir. 2006). However, an association can bring claims on
behalf of its members. See Summers v. Earth Island Inst., 555
U.S. 488, 494 (2009); Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 342-43 (1977). Plaintiff Event Profes-
sionals thus has standing to assert the litigating rights of its
members, including Winckler and Hill.
“[L]imitations on a litigant’s assertion of jus tertii are not
constitutionally mandated, but rather stem from a salutary
‘rule of self-restraint’ designed to minimize unwarranted
intervention into controversies where the applicable constitu-
tional questions are ill-defined and speculative.” Craig v.
Boren, 429 U.S. 190, 193-94 (1976) (citations omitted). Jus
tertii standing is based on a litigant’s assertion that the appli-
cation of a statute or rule to a third party violates that party’s
rights. See Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 624 n.3 (1989). “[V]endors and those in like
positions have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates of the rights
of third parties who seek access to their market or function.”
Craig, 429 U.S. at 195. See also Hong Kong Supermarket v.
Kizer, 830 F.2d 1078, 1082 (9th Cir. 1987) (court confers
third party standing when it is satisfied that plaintiff will be
“effective proponent[ ] of third-party rights”).
[2] Event Professionals has Article III standing to assert
claims on behalf of those who seek to marry on an unencum-
bered state beach in Hawai’i. As in Craig, application of
DLNR regulations to commercial weddings has resulted in
economic injury to “vendors,” that is, to the members of
6320 KAAHUMANU v. STATE OF HAWAII
Event Professionals, who organize such weddings. Also as in
Craig, members of Event Professionals are “subject to sanc-
tions and loss of license for violation of the [regulations],”
making Events Professionals “a proper party in interest to
object to [their] enforcement.” 429 U.S. at 193; see also
Carey v. Population Servs., Int’l, 431 U.S. 678, 682-84 (1977)
(distributor of contraceptives had standing to bring a privacy
challenge against New York law limiting distribution of con-
traceptives on behalf of potential purchasers); Eisenstadt v.
Baird, 405 U.S. 438, 445 (1972) (distributor of contraceptives
who acted as “an advocate of the rights of persons to obtain
contraceptives and those desirous of doing so” had third party
standing); Barrows v. Jackson, 346 U.S. 249, 254-60 (1953)
(seller of land who acted as an advocate of minority rights had
standing to defend against racially restrictive covenant). “The
legal duties created by [DLNR’s challenged rules] are
addressed directly to vendors such as [Event Professionals].
[Event Professionals] is obliged either to heed the [regulatory
prohibition], thereby incurring a direct economic injury
through the constriction of [its] market, or to disobey the [reg-
ulatory] command and suffer” legal sanction. Craig, 429 U.S.
at 194.
[3] Because we hold that Event Professionals has Article
III standing, we need not reach the question whether plaintiff
Kaahumanu also has Article III standing. See Watt v. Energy
Action Educ. Found., 454 U.S. 151, 160 (1981) (“Because we
find [one plaintiff] has standing, we do not consider the stand-
ing of the other plaintiffs.”).
B. First Amendment
[4] Plaintiffs’ First Amendment challenge poses three
questions. First, do wedding ceremonies constitute “speech”
protected by the First Amendment? Second, what is the nature
of the forum? Third, are the challenged restrictions on com-
mercial weddings permissible in the forum? See, e.g., Flint v.
Dennison, 488 F.3d 816, 826-30 (9th Cir. 2007).
KAAHUMANU v. STATE OF HAWAII 6321
1. First Amendment Protection
DLNR suggests that wedding ceremonies “may not impli-
cate First Amendment protected speech at all” because they
are “personal, private, and non-political communication.”
The First Amendment protects more than political speech.
“[E]ven though political speech is entitled to the fullest possi-
ble measure of constitutional protection, there are a host of
other communications that command the same respect.” Mem-
bers of the City Council of L.A. v. Taxpayers for Vincent, 466
U.S. 789, 816 (1984); see, e.g. Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569
(1995) (First Amendment protects parades; paintings, music
and poetry are “unquestionably shielded”); Int’l Soc’y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78
(1992) (citing cases) (First Amendment protects public ritual
of disseminating religious material and soliciting funds for
support); Murdock v. Pennsylvania, 319 U.S. 105 (1943)
(First Amendment protects door-to-door religious evange-
lism).
[5] The First Amendment also protects more than just the
spoken and written word. It protects expressive conduct so
long as that conduct “convey[s] a particularized message” and
is likely to be understood in the surrounding circumstances.
Spence v. Washington, 418 U.S. 405, 409-11 (1974) (per
curiam); see, e.g., City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986) (First Amendment protects nude dancing);
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66
(1981) (live entertainment); Berger v. City of Seattle, 569
F.3d 1029, 1035-37 (9th Cir. 2009) (en banc) (balloon art and
other street performances). A “narrow, succinctly articulable
message” is not required. Hurley, 515 U.S. at 569. See also
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 642
(1943) (failure to salute a flag); Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (right to wear
an armband in a public school).
6322 KAAHUMANU v. STATE OF HAWAII
[6] Couples often express their religious commitments and
values in their wedding ceremony. For example, it is common
for religious leaders to serve as wedding officiants. See Lewis
v. Harris, 908 A.2d 196, 201 (N.J. 2006); Oswandel v.
Comm’r, T.C.M. (RIA) 2007-183, at *1 (T.C. 2007) (minis-
ter’s duties include officiating at weddings). Couples often
include religious symbols and rituals in their wedding cere-
monies. See, e.g. Pinkhasov v. Petocz, 331 S.W.3d 285, 288
(Ky. Ct. App., 2011) (“During the ceremony, the “Ketubah”
was written and executed by the parties in the presence of the
required Jewish witnesses, a plate was ritualistically broken,
and Pinkhasov performed the ceremonial act of lowering the
veil over Petocz’s face.” (footnote omitted)); R.M. v. S.R.M.,
2008 WL 2795955, at *1 (N.Y.Sup., 2008) (listing, among
others, the saptahapadhi ritual of Hindu wedding ceremonies
by which bride and groom do a seven-step walk around a
sacred fire with each step symbolizing a prayer for well-being
in their marriage). Secular couples are often married in non-
religious ceremonies that reflect their beliefs and personal
commitments.
[7] The core of a wedding ceremony’s “particularized mes-
sage” is easy to discern, even if the message varies from one
wedding to another. Wedding ceremonies convey important
messages about the couple, their beliefs, and their relationship
to each other and to their community. “[A] private speaker
does not forfeit constitutional protection simply by combining
multifarious voices, or by failing to edit their themes to isolate
an exact message as the exclusive subject matter of the
speech.” Hurley, 515 U.S. at 569-70. The core of the message
in a wedding is a celebration of marriage and the uniting of
two people in a committed long-term relationship. “Marriage
is one of the basic civil rights of man, fundamental to our very
existence and survival.” Loving v. Virginia, 388 U.S. 1, 12
(1967) (internal quotation marks and citation omitted). We
have no difficulty concluding that wedding ceremonies are
protected expression under the First Amendment.
KAAHUMANU v. STATE OF HAWAII 6323
2. Nature of the Forum
The standards we use to determine whether DLNR’s regu-
lations and guidelines violate the First Amendment depend on
the nature of the forum at issue. See Good News Club v. Mil-
ford Cent. Sch., 533 U.S. 98, 106 (2001). The Supreme Court
has divided public forums into three categories: “traditional
public forums,” “designated public forums,” and “limited
public forums.” Christian Legal Soc’y v. Martinez, 130 S. Ct.
2971, 2984 n.11 (2010); see also Pleasant Grove City v. Sum-
mum, 555 U.S. 460, 469-71 (2009); Wright v. Incline Vill.
Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011).
The rest of government property is either a nonpublic forum
or no forum at all. Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666, 677 (1998).
[8] Traditional public forums are “devoted to assembly and
debate” because of a “long tradition or . . . government fiat.”
Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’
Ass’n., 460 U.S. 37, 45 (1983)) (internal quotation marks
omitted). “The government can exclude a speaker from a tra-
ditional public forum ‘only when the exclusion is necessary
to serve a compelling state interest and the exclusion is nar-
rowly drawn to achieve that interest.’ ” Id. (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800
(1985).
“Designated public for[ums] . . . are created by purposeful
governmental action.” Id. “ ‘The government does not create
a [designated] public forum by inaction or by permitting lim-
ited discourse, but only by intentionally opening a nontradi-
tional public forum for public discourse.’ ” Id. (quoting
Cornelius, 473 U.S. at 802) (alterations in original). “Govern-
ment restrictions on speech in a designated public forum are
subject to the same strict scrutiny as restrictions in a tradi-
tional public forum.” Pleasant Grove, 555 U.S. at 469-70.
Limited public forums are forums that the government has
reserved “for certain groups or the discussion of certain top-
6324 KAAHUMANU v. STATE OF HAWAII
ics.” Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 829 (1995). We have sometimes referred to the lim-
ited public forum as a “sub-category of a designated public
forum.” Flint, 488 F.3d at 830 (quoting Hopper v. City of
Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001)). “In such a
forum, a government entity may impose restrictions on speech
that are reasonable and viewpoint-neutral.” Pleasant Grove,
555 U.S. at 469-70 (citation omitted).
[9] “Other government properties are either nonpublic for[-
ums] or not for[ums] at all.” Forbes, 523 U.S. at 677. In a
nonpublic forum, regulations must be “(1) reasonable in light
of the purpose served by the forum and (2) viewpoint neu-
tral.” Ctr. for Bio-ethical Reform, Inc. v. City & Cnty. of
Honolulu, 455 F.3d 910, 920 (9th Cir. 2006) (quoting Brown
v. Cal. Dep’t of Transp., 321 F.3d 1217, 1222 (9th Cir. 2002).
The parties dispute the nature of the forum. DLNR con-
tends that all unencumbered state beaches are nonpublic
forums. Plaintiffs contend that they are all traditional public
forums. Hawai’i’s unencumbered state beaches vary from
heavily trafficked beaches to isolated beaches accessible only
by foot or watercraft. On the record before us, it is difficult
to put all of Hawai’i’s unencumbered state beaches into a sin-
gle forum category. See Boardley v. U.S. Dep’t of the Interior,
615 F.3d 508, 515 (D.C. Cir. 2010) (rejecting contention that
all national parks are traditional public fora because “[t]he
record before this court is woefully inadequate to determine
the forum status of the hundreds of national parks governed
by the NPS regulations”).
[10] We need not decide the precise nature of the forum.
For the regulations we uphold, we will assume without decid-
ing that unencumbered state beaches in Hawai’i are, as Plain-
tiffs contend, a traditional public forum. That is, we will
assess the validity of all the regulations we uphold under the
most exacting test for restrictions on forum access. For the
regulations that we conclude are invalid, we will assume with-
KAAHUMANU v. STATE OF HAWAII 6325
out deciding that the unencumbered state beaches in Hawai’i
are, as DLNR contends, nonpublic forums. That is, we will
assess their validity under the less exacting test for restrictions
on forum access.
3. Validity of Restrictions on Commercial Weddings
a. Facial or As-Applied Challenge
Plaintiffs seek to bring both facial and as-applied chal-
lenges to DLNR’s regulations of commercial weddings. We
conclude that they may bring only an as-applied challenge,
with one exception. Plaintiffs may bring a facial challenge to
the regulations giving DLNR discretion to grant and revoke
the permits and amend their terms and conditions.
[11] In Southern Oregon Barter Fair v. Jackson County,
372 F.3d 1128 (9th Cir. 2004), we described the conditions
under which a facial challenge to a statute or regulation may
be brought:
[T]o be subject to facial challenge, a licensing law
must have a close enough nexus to expression, or
conduct commonly associated with expression, to
pose a real and substantial threat of the risks of cen-
sorship. [L]aws of general application that are not
aimed at conduct commonly associated with expres-
sion and do not permit licensing determinations to be
made on the basis of ongoing expression or the
words about to be spoken, such as laws requiring
building permits, pose little danger of censorship and
may therefore be challenged only by the usual as-
applied method. In other words, a facial challenge is
proper only if the statute by its terms seeks to regu-
late spoken words or patently expressive or commu-
nicative conduct, such as picketing or handbilling.
Id. at 1135 (emphasis added; internal quotation marks and
citations omitted). The law at issue in Barter Fair was Ore-
6326 KAAHUMANU v. STATE OF HAWAII
gon’s Mass Gathering Act, which “regulates gatherings of
large numbers of people overnight in open spaces.” Id. We
noted, “It is certainly possible to imagine gatherings that
might be subject to the Act but are purely recreational and
devoid of expressive purpose, such as some carnivals, festi-
vals, and . . . . Nonetheless, the statute is broad enough to
cover gatherings that are expressive, such as large-scale dem-
onstrations or religious ceremonies.” Id. We concluded “that
the Act bears a sufficiently close nexus to conduct commonly
associated with expression that it is subject to a facial chal-
lenge.” Id. at 1136.
In Food Not Bombs, the law at issue was a municipal ordi-
nance regulating the serving or distribution of food in public
parks. 450 F.3d at 1029. Plaintiff Food Not Bombs sought to
distribute free food to “highlight a connection between the
lack of food for the poor and war-preparation activities of the
United States government.” Id. at 1030 (internal quotation
marks omitted). We held that a facial challenge to the ordi-
nance was not available: “Food Not Bombs does not argue
that food distribution is on its face an expressive activity.
Whether food distribution can be expressive activity protected
by the First Amendment under particular circumstances is a
question to be decided in an as-applied challenge, should one
be brought.” Id. at 1032 (internal citations omitted). We also
expressly noted that plaintiffs did not challenge the licensing
official’s discretion in determining whether to grant or deny
a permit. See id. at 1037 n.15 (explaining that plaintiffs did
not challenge “the breadth of official discretion” but instead
challenged the “ ‘other’ requirements of time, place, and man-
ner jurisprudence”) (quoting Galvin v. Hay, 374 F.3d 739,
747 n.5 (9th Cir. 2004)).
[12] We conclude that this case is closer to Food Not
Bombs than to Barter Fair. The regulations imposing restric-
tions on commercial weddings do not on their face “seek[ ] to
regulate spoken words or patently expressive or communica-
tive conduct, such as picketing or handbilling.” Barter Fair,
KAAHUMANU v. STATE OF HAWAII 6327
372 F.3d at 1135. The breadth and generality of DLNR’s reg-
ulation of commercial activity, combined with DLNR’s fail-
ure to regulate in any manner who may officiate at a wedding,
who may attend the wedding, what may be worn at a wed-
ding, and what words may be spoken at a wedding, convince
us that a facial challenge is not available. We therefore treat
most of this case as an as-applied challenge. To the degree
that we reject Plaintiffs’ facial attack on the regulation, we
also reject their overbreadth challenge. See Pest Comm. v.
Miller, 626 F.3d 1097, 1110-1111 (9th Cir. 2010); Nunez v.
City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997).
[13] However, we address as a facial challenge Plaintiffs’
objection to the regulations that give DLNR discretion to
grant and revoke permits, and to amend their terms and condi-
tions. DLNR has not actually exercised this discretion
adversely to Plaintiffs, but such exercise of authority is not
necessary. The Supreme Court and the Ninth Circuit have
repeatedly allowed facial attacks premised on the grant of
unbridled discretion to a licensing official. See City of Lake-
wood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759 (1988)
(“[A] facial challenge lies whenever a licensing law gives a
government official or agency substantial power to discrimi-
nate based on the content or viewpoint of speech by suppress-
ing disfavored speech or disliked speakers.”); Freedman v.
Maryland, 380 U.S. 51, 56 (1965) (“[I]t is well established
that one has standing to challenge a statute on the ground that
it delegates overly broad licensing discretion to an administra-
tive office, whether or not his conduct could be proscribed by
a properly drawn statute, and whether or not he applied for a
license.”); Long Beach, 574 F.3d at 1020 (allowing unbridled
discretion claim to proceed as facial challenge); Seattle Affili-
ate of the October 22nd Coalition to Stop Police Brutality,
Repression, & the Criminalization of a Generation v. City of
Seattle, 550 F.3d 788, 794 (9th Cir. 2008) (collecting cases
allowing facial challenge to regulation that confers unbridled
discretion on government official to restrict expressive activ-
ity).
6328 KAAHUMANU v. STATE OF HAWAII
We allow facial challenges to such discretion for two rea-
sons:
First, the mere existence of the licensor’s unfettered
discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech,
even if the discretion and power are never actually
abused . . . . Second, the absence of express stan-
dards [i.e., unbridled discretion] makes it difficult to
distinguish, ‘as applied,’ between a licensor’s legiti-
mate denial of a permit and its illegitimate abuse of
censorial power.
Long Beach, 574 F.3d at 1019-20 (omission in original)
(quoting City of Lakewood, 486 U.S. at 757-58 (1988)).
A plaintiff must meet two requirements to bring a facial
unbridled discretion challenge. “First, a plaintiff must satisfy
the standing requirements of Article III by showing that the
challenged provision or provisions apply to its conduct.” Id.
at 1020. As noted above, Plaintiffs have Article III standing.
“Second, the challenged [regulation granting discretion] ‘must
have a close enough nexus to expression, or to conduct com-
monly associated with expression, to pose a real and substan-
tial threat of the identified censorship risks.’ ” Id. (quoting
City of Lakewood, 486 U.S. at 759). We conclude that the
grant of discretion to DLNR to administer the permitting
scheme has a sufficient nexus to protected expression to sat-
isfy this requirement.
[14] We conclude that Plaintiffs may bring a facial chal-
lenge for their claim that the regulations give DLNR unbri-
dled discretion to grant, revoke, or modify the permits.
b. Plaintiffs’ Challenge
[15] “[R]easonable time, place, [and] manner restrictions
on speech are permissible” in a traditional public forum. Id.
KAAHUMANU v. STATE OF HAWAII 6329
at 1023 (alteration in original and internal quotation marks
omitted) (quoting Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293 (1984)). Such restrictions in a traditional
public forum are reasonable “provided [1] that they are justi-
fied without reference to the content of the regulated speech,
[2] that they are narrowly tailored to serve a significant gov-
ernmental interest, and [3] that they leave open ample alterna-
tive channels for communication of the information.” Id.
(alterations in original and internal quotation marks omitted)
(quoting Clark, 468 U.S. at 293).
Plaintiffs object to three aspects of DLNR’s regulation of
commercial weddings: (i) the permit requirement; (ii) the lim-
itation on accessories; and (iii) the insurance and indemnifica-
tion requirement. We address these three objections in turn.
i. Permit Requirement
[16] A reasonable time, place, and manner restriction for
a traditional public forum “can include permitting require-
ments.” Id. Such a requirement must satisfy the three-part test
described above for a valid time, place, and manner restric-
tion. See Food Not Bombs, 450 F.3d at 1037 (assessing a
content-neutral permit requirement as a time, place, and man-
ner restriction). We have also established a fourth criterion
when a permitting scheme is challenged. Such a scheme
“ ‘may not delegate overly broad licensing discretion to a
government official.’ ” Long Beach, 574 F.3d at 1024 (quot-
ing Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130
(1992)).
(a) Time, Place, and Manner Restriction
[17] We conclude that the permitting requirement serves a
significant governmental interest. DLNR is charged with reg-
ulating competing and overlapping uses of Hawai’i’s public
lands, including its public beaches. The task of DLNR is
much like the task of the Park District in Thomas v. Chicago
6330 KAAHUMANU v. STATE OF HAWAII
Park District, 534 U.S. 316 (2002). In sustaining the district’s
permit requirement, the Supreme Court wrote:
[T]he object of the permit system . . . is not to
exclude communication of a particular content, but
to coordinate multiple uses of limited space, to
assure preservation of the park facilities, to prevent
uses that are dangerous, unlawful, or impermissible
under the Park District’s rules, and to assure finan-
cial accountability for damage caused by the event.
Id. at 322. The permitting requirement in this case allows
DLNR to serve the permissible purposes described and
approved in Thomas. The requirement is reasonably designed
to minimize conflicting uses of limited beach area and to con-
serve the physical resource of the beaches. As the district
court noted, “[the permitting requirement] is directed at keep-
ing public beaches open to the public, towards minimizing
congestion, promoting maximum use, encouraging safety and
cleanliness, and assuring accountability for possible damage.”
[18] The permitting requirement is narrowly tailored to
further this interest. The application process is not burden-
some. Most commercial wedding permits are obtained online
via DLNR’s Wiki Permits Online System. The online applica-
tion process has two steps. The first step is to register on Wiki
Permits as a user. To do so, an applicant — typically a com-
mercial wedding planner, or a minister, priest or rabbi — fills
out and mails an application to register, along with a Certifi-
cate of Insurance naming Hawai’i as an additional insured. An
applicant need register only once. DLNR has no discretion to
deny a registration if the applicant fills out the form and sub-
mits proof of insurance. The second step is to obtain a permit
for a specific event. To do so, an applicant enters details of
the event into Wiki Permits, including the beach location,
date, time, number of attendees, participating vendors, and the
applicant’s and vendors’ contact information. The applicant
then pays a $20 minimum fee or $.10 per square foot of beach
KAAHUMANU v. STATE OF HAWAII 6331
space requested. Upon submission of the event details and
payment of the fee, the Wiki Permits system issues a permit
immediately online, which the applicant can then print. The
record does not show any instance where an application has
been denied.
[19] The permit conditions are also narrowly tailored.
They further the state’s interest by requiring an applicant to
specify the amount of space needed for the wedding; by
requiring a permit holder not to reserve space on the beach
ahead of time and not to disturb people already on the beach;
by limiting a permit to two hours; and by requiring that a per-
mit holder leave the beach clean after the event or activity.
Plaintiffs do not identify any way in which these conditions
are overly restrictive.
However, Plaintiffs argue that DLNR’s permitting require-
ment is not narrowly tailored because it applies to weddings
as small as three individuals — the two people getting mar-
ried and the minister. The President of Event Professionals
states that “[b]each weddings usually involve the couple, a
minister, and less than 20 guests.” Plaintiffs rely on our deci-
sion in Berger v. City of Seattle striking down a permitting
requirement imposed on street performers in a Seattle public
park. See 569 F.3d at 1048. In Berger, we disapproved of the
government’s “registration system that govern[ed] speech in
a public forum and applie[d] to groups as small as a single
individual performing without an audience.” Id. at 1058; see
also id. at 1039; Long Beach, 574 F.3d at 1034 (“Advance
notice and permitting requirements applicable to [groups
smaller than 75 people] would likely be unconstitutional,
unless such uses [of public property] implicated other signifi-
cant governmental interests, or where the public space in
question was so small that even a relatively small number of
people could pose a problem of regulating competing uses.”);
Food Not Bombs, 450 F.3d at 1043 n.17 (noting that permit-
ting requirements for groups less than 150 people “may well
not comport comfortably with the limited governmental inter-
6332 KAAHUMANU v. STATE OF HAWAII
ests at play in public parks and open spaces”). We explained,
“The presumptive invalidity and offensiveness of advance
notice and permitting requirements stem from the significant
burden that they place on free speech.” Berger, 569 F.3d at
1037. We do not retreat from our holdings in these cases, but
they are inapplicable here.
In Berger, the plaintiff settled his as-applied claims with
the city and appealed from summary judgment on his facial
challenge to the permitting requirement. Id. at 1035. We ana-
lyzed hypothetical unconstitutional applications of the permit-
ting requirement to strike it down. Id. at 1046, 1056. Here, we
must limit our review to Plaintiffs’ challenge as applied to
beach weddings. Vincent, 466 U.S. at 802. Nothing we say is
meant to suggest that the beach use permitting requirement at
issue would necessarily be valid with respect to other individ-
uals or small groups, such as political demonstrators, street
performers, or religious canvassers soliciting funds on
Hawai’i’s state beaches.
Berger identified four particular burdens imposed by the
existence of a permitting requirement: (1) “the procedural
hurdle of filling out and submitting a written application”; (2)
“the temporal hurdle of waiting for the permit to be granted”;
(3) the elimination of anonymous speech; and (4) the elimina-
tion of spontaneous speech. Id. at 1037-38. But those con-
cerns do not apply to beach weddings. As described above,
the permit applications are easy to fill out and submit online.
The whole process can be completed within a few minutes if
the applicant is already registered, as commercial wedding
vendors are likely to be. And the permit is issued immediately
after the online application has been submitted. Plaintiffs have
expressed no interest in performing secret or spontaneous
weddings. The absence of any significant burden on Plain-
tiffs’ speech weighs heavily in the narrow tailoring analysis.
See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Sagardia
de Jesus, 634 F.3d 3, 14 (1st Cir. 2011), cert. denied, 132 S.
Ct. 459 (2011).
KAAHUMANU v. STATE OF HAWAII 6333
[20] Further, we conclude that the permitting requirement
is content-neutral. DLNR’s regulations require a “written per-
mit” before a person can “engage in commercial activities of
any kind” on unencumbered beaches. HAR § 13-221-35.
Commercial activities, in turn, involve the “use of or activity
on state land for which compensation is received . . . for
goods or services.” Id. § 13-221-2. The triggering factor for
requiring a permit is that a wedding be “commercial,” as that
term is defined by DLNR. Id. § 13-221-2; see also Long
Beach, 574 F.3d at 1024 (defining a content-neutral restriction
as one “based on something other than the content of the
speech”); Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th
Cir. 2005) (determining content-neutrality by inspecting the
“literal command of the restraint”).
[21] We also conclude that there are ample alternative
channels for expression. “The Supreme Court generally will
not strike down a governmental action for failure to leave
open ample alternative channels of communication unless the
government enactment will foreclose an entire medium of
public expression across the landscape of a particular commu-
nity or setting.” Ctr. for Fair Pub. Policy v. Maricopa Cnty.,
336 F.3d 1153, 1170 (9th Cir. 2003) (internal quotation marks
omitted) (quoting Colacurcio v. City of Kent, 163 F.3d 545,
554 (9th Cir. 1998)). The “entire medium” of a beach wed-
ding is clearly not foreclosed. A person need not obtain a per-
mit to conduct a commercial beach or beach-related wedding
on sites other than a state beach. These alternative sites
include county beaches or private property next to any beach.
Non-commercial weddings on state beaches are in no way
restricted by the challenged regulations.
[22] Finally, we conclude that, with two exceptions
explained in the next section, the permit requirement does not
delegate overly broad discretion to a government official. The
substantive criteria for granting a permit are clear. So long as
an applicant agrees to the terms and conditions of the permit
6334 KAAHUMANU v. STATE OF HAWAII
and pays the fee, the regulations leave little or no discretion
to the DLNR in deciding whether to grant a permit.
(b) Discretion to Revoke and Modify Permit
While we are satisfied that the power to grant permits is
sufficiently constrained, we conclude that the discretion
DLNR has reserved to revoke a permit, and add to its terms
and conditions, is not. Paragraph 18 of the Terms and Condi-
tions provides, “The right-of-entry permit is revocable and
terminable at anytime for any reason in the sole and absolute
discretion of the Chairperson [of the Board of DLNR].” Fur-
ther, Paragraph 21 grants DLNR “the right to impose addi-
tional[ ] terms and conditions as it deems necessary or
appropriate while the right-of-entry is in force.”
For purposes of our analysis in this section, we assume that
the state’s unencumbered beaches are nonpublic forums. In a
nonpublic forum, restrictions on access must be “(1) reason-
able in light of the purpose served by the forum and (2) view-
point neutral.” Ctr for Bio-ethical Reform, Inc., 455 F.3d at
920 (quoting Brown, 321 F.3d at 1222).
[23] The Supreme Court has not expressly held that the
viewpoint neutrality requirement includes the prohibition on
a licensing authority’s unbridled discretion, but at least two
other circuits have expressly so held. See Child Evangelism
Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs., 457
F.3d 376, 384 (4th Cir. 2006) (“[V]iewpoint neutrality
requires not just that a government refrain from explicit view-
point discrimination, but also that it provide adequate safe-
guards to protect against the improper exclusion of
viewpoints.”); Southworth v. Bd. of Regents of Univ. of Wisc.
Sys., 307 F.3d 566, 579 (7th Cir. 2002) (“[W]e conclude that
the prohibition against unbridled discretion is a component of
the viewpoint-neutrality requirement.”). We agree with those
circuits.
KAAHUMANU v. STATE OF HAWAII 6335
The Supreme Court has shaped the unbridled discretion
doctrine with the prohibition on viewpoint discrimination in
mind. In City of Lakewood, 486 U.S. 750, the Court sustained
a facial challenge to a city ordinance conferring unbridled dis-
cretion on the mayor to deny an application for the placement
of a news rack. Id. at 769-70. In so doing, it tied the prohibi-
tion on unbridled discretion to the constitutional requirement
of viewpoint neutrality. The Court wrote,
[A] law or policy permitting communication in a cer-
tain manner for some but not for others raises the
specter of . . . viewpoint censorship. This danger is
at its zenith when the determination of who may
speak and who may not is left to the unbridled dis-
cretion of a government official. As demonstrated
above, we have often and uniformly held that such
statutes or policies impose censorship on the public
or the press, and hence are unconstitutional, because
without standards governing the exercise of discre-
tion, a government official may decide who may
speak and who may not based upon the . . . view-
point of the speaker.
Id. at 763-64; see also Forsyth, 505 U.S. at 130 (condemning
unbridled discretion in licensing authority as having “the
potential for becoming a means of suppressing a particular
point of view” (internal quotation marks omitted)); Thomas,
534 U.S. at 323 (premising unbridled discretion doctrine on
risk that “licensing official . . . will favor or disfavor speech
based on its content”).
Twelve years later, in Board of Regents of University of
Wisconsin System v. Southworth, 529 U.S. 217 (2000), the
Court implied that the unbridled discretion doctrine is neces-
sary to protect against viewpoint discrimination. Id. at 235. In
Southworth, it examined a university rule regulating the fund-
ing or defunding of a student organization by majority vote of
the student body. Id. It wrote, “It is unclear to us what protec-
6336 KAAHUMANU v. STATE OF HAWAII
tion, if any, there is for viewpoint neutrality in this part of the
process. To the extent the referendum substitutes majority
determinations for viewpoint neutrality it would undermine
the constitutional protection the program requires. The whole
theory of viewpoint neutrality is that minority views are
treated with the same respect as are majority views.” Id. at
235. The decision-maker there was a majority of the student
body in a public university, but the Court’s concern for a lack
of standards applies no less to a public official with unlimited
discretion in administering a permitting scheme. On remand,
the Seventh Circuit expressly held that the viewpoint neutral-
ity requirement includes the prohibition on unbridled discre-
tion. See Southworth, 307 F.3d at 579.
In these cases, the Supreme Court has made clear that con-
ferring an unbridled discretion on a licensing official creates
the danger of self-censorship, as well as a danger of govern-
ment censorship. A citizen may hesitate to express, or refrain
from expressing, his or her viewpoint for fear of adverse gov-
ernment action such as the denial of a permit. See City of
Lakewood, 486 U.S. at 759 (describing “self-censorship by
speakers in order to avoid being denied a license to speak” as
risk of unbridled discretion). A standardless discretion also
makes it difficult to detect, and protect the public from,
unconstitutional viewpoint discrimination by the licensing
official. See id. at 759 (explaining difficulty of “effectively
detecting, reviewing, and correcting” censorship “without
standards by which to measure the licensor’s action”); see
also Thomas, 534 U.S. at 323 (describing risk that “[a licens-
ing official] will favor or disfavor speech based on its con-
tent,” posed by vesting a public official or body with
unbridled discretion).
[24] “[A] time, place, and manner regulation [must] con-
tain adequate standards to guide the official’s decision and
render it subject to effective judicial review.” Id. at 323. Ade-
quate guiding standards are not provided here, given that
DLNR may revoke a permit “at anytime.” “for any reason,”
KAAHUMANU v. STATE OF HAWAII 6337
and “in the sole and absolute discretion of the Chairperson.”
Further, DLNR may add terms and conditions to a permit “as
it deems necessary or appropriate.” In some contexts, the
phrase “necessary and appropriate” may sufficiently constrain
the authority of a permitting official. But here, when read in
pari materia with the Chairperson’s discretionary power to
revoke a permit, there are insufficient limitations on the offi-
cial’s authority. See Forsyth County, 505 U.S. at 130 (“[A
permit requirement] may not delegate overly broad licensing
discretion to a government official.”); see also World Wide
Rush, LLC v. City of L.A., 606 F.3d 676, 687 (9th Cir. 2010)
(stating that “a law cannot condition the free exercise of First
Amendment rights on the unbridled discretion of government
officials”) (internal quotation marks omitted) (quoting Desert
Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818
(9th Cir. 1996)).
[25] There is nothing in the record to indicate that either
the Chairperson or the DLNR has ever used Paragraphs 18
and 21 to “favor some speakers and suppress others.” Barter
Fair, 372 F.3d at 1138. To the contrary, the record indicates
that permits for commercial weddings have been issued as a
matter of course, and that the discretionary power reserved in
Paragraphs 18 and 21 has never been exercised. However,
because the potential for the exercise of such power exists, we
hold that this discretionary power is inconsistent with the First
Amendment.
ii. Limitation on Accessories
[26] Plaintiffs challenge DLNR’s limitation on accessories.
With certain exceptions, the limitation prohibits “accessories”
from being “placed on or within the right-of-entry area.”
Given the purpose of DLNR’s regulation of activities on pub-
lic beaches under its jurisdiction, the limitation on accessories
furthers a significant governmental interest. DLNR seeks to
allow commercial beach weddings, but, at the same time, not
to allow such weddings to interfere unduly with the activities
6338 KAAHUMANU v. STATE OF HAWAII
of other beachgoers. To that end, DLNR places various limits
on commercial weddings, including limits on the physical
objects that wedding participants may bring onto the beaches.
On the assumption that the unencumbered state beaches are
traditional public forums, we apply the three-part test appro-
priate to that forum. We have already described DLNR’s sig-
nificant interest in regulating land uses of state beaches and
the ample alternative channels for beach weddings.
We also hold that DLNR’s limitation on accessories is nar-
rowly tailored to serve a significant government interest.
DLNR faces a classic line-drawing problem and it has chosen
to draw the line in a manner that substantially limits the
adverse impact of commercial weddings on other users’
enjoyment of Hawai’i’s public beaches. DLNR limits a com-
mercial wedding to the area reserved in the permit, limits the
ability of wedding participants to displace other users from
favored places on the beaches, limits the duration of a wed-
ding, limits the type (and thereby the volume) of musical
instruments, and limits accessories. But DLNR allows unam-
plified musical instruments, allows loose flowers, allows
chairs for elderly or disabled attendees, allows a cake stand or
podium, and allows “non-obtrusive hand-carried wedding
accessories.”
We construe the limitation on accessories narrowly. As we
have noted earlier in our opinion, the Terms and Conditions
provide:
No accessories [nor] structures . . . shall be placed
on or within the right-of-entry area or premises,
including but not limited to the following: arches;
bowers; alters [sic]; tables; chairs; kahilis; tents or
tarps; event signage of any type including banners,
sandwich boards; kiosks or carts; stanchions, posts,
ropes or similar equipment for the purpose of demar-
KAAHUMANU v. STATE OF HAWAII 6339
cation of the right-of-entry area; and surfboards, kay-
aks or other ocean recreation equipment[.]
The use of the verb “placed,” combined with the illustrative
list of prohibited accessories, strongly suggest that the limita-
tion applies only to things that are placed on the beach with-
out being held or carried by anyone. The Terms and
Conditions expressly allow “non-obtrusive hand-carried wed-
ding accessories.” Plaintiffs have not identified any instance
in which DLNR prohibited the use of hand-held religious
objects such as hand-held chuppas, chalices, and small, hand-
held kahilis. We therefore construe the Terms and Conditions
as not prohibiting these objects. Cf. Frisby v. Schultz, 487
U.S. 474, 483 (1998) (construing statute narrowly to allow for
First Amendment activities). We see nothing in the First
Amendment that requires DLNR to allow more than what is
thus permitted by the Terms and Conditions.
The limitation on accessories is also content-neutral. Plain-
tiffs contend that the limitation impermissibly shows a “clear
preference for nonliturgical religions” and “target[s] people of
Catholic, Orthodox or Jewish faiths.” We disagree. When
determining the content neutrality of a restriction, we do not
“make a searching inquiry of hidden motive” but “look at the
literal command of the restraint.” Menotti, 409 F.3d at 1129.
The text of the limitation on accessories, which makes no ref-
erence to religion, belies Plaintiffs’ contention. That the limi-
tation may have an incidental effect on the use of specific
religious implements or physical symbols does not render it
impermissible. See Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (“A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has
an incidental effect on some speakers or messages but not oth-
ers.”); cf. Emp’t Div., Dep’t of Human Res. of Or. v. Smith,
494 U.S. 872, 879 (1990) (denying religious exemption from
“valid and neutral law of general applicability” based on Free
Exercise challenge).
6340 KAAHUMANU v. STATE OF HAWAII
iii. Insurance and Indemnification/Hold-Harmless
Requirements
[27] Plaintiffs also contend that DLNR’s insurance and
indemnification/hold-harmless requirements are impermissi-
ble. We disagree.
Paragraph 3 of Terms and Conditions provides:
Applicant shall procure at Applicant’s own expense,
and maintain during the entire period of the . . . per-
mit . . . a policy or policies of comprehensive public
liability insurance in an amount of at least $300,000
per incident and $500,000 aggregate insuring the
State of Hawaii against all claims for personal
injury, death, and property damage.
The applicant must submit a certificate naming Hawai’i as an
additional insured on his or her policy.
Paragraph 4 requires the applicant to
indemnify, defend, and hold [DLNR] harmless from
and against any claim . . . arising out of or resulting
from: (a) any act or omission on the part of Appli-
cant relating to Applicant’s use . . . of the right-of-
entry area or premises; (b) any failure on the part of
Applicant to maintain the right-of-entry area or
premises and areas adjacent thereto in Applicant’s
use and control . . . ; and (c) from and against all . . .
claims by whomsoever brought or made by reason of
Applicant’s [failure to follow] the terms . . . [of the
permit] or [federal and state law].
The insurance and the indemnification/hold-harmless
requirements serve a significant governmental interest. These
requirements compensate third parties and DLNR for injury
KAAHUMANU v. STATE OF HAWAII 6341
or property damage caused by the permittee. They also protect
DLNR from liability to third parties caused by the permittee.
The requirements are narrowly tailored to this interest. Evi-
dence in the record shows that the cost of insurance does not
pose a substantial burden on Plaintiffs. Reverend Eve Hogan
declares that she has been quoted a price of “upwards of $500
a year” for the insurance required to satisfy DLNR’s permit-
ting requirement for a commercial wedding. She states that
insurance for a wedding “coordinator” would be approxi-
mately $250 a year. Reverend Hogan says that she “only
do[es] a few weddings a month.” Id. Assuming that “a few”
means three, Reverend Hogan’s insurance cost attributable to
DLNR’s permitting requirement is about $14 per wedding.
The indemnification/hold-harmless requirement is not
overly broad. We invalidated an indemnification/hold-
harmless requirement in Long Beach, 574 F.3d at 1040, but
in that case the indemnification/hold-harmless clause was
extremely broad. It required permittees to indemnify and hold
the city harmless not only for harm caused by third parties
reacting to the expressive activity of the permittees, but also
for harm caused by the city to the permittees, and harm
“caused by the conduct of the event” to third parties, when
“conduct” included actions by the city or other parties unre-
lated to the permittees. Id.
In contrast to Long Beach, the indemnification/hold-
harmless clause in this case does not require a permittee to
hold the state harmless for all consequences of the event,
including those caused by the state’s own actions. The clause
here is much narrower, requiring a permittee to indemnify and
hold Hawai’i harmless only for “any act or omission on the
part of [the] Applicant,” “any failure on the part of [the]
Applicant” to maintain the premises, and all “claims . . . made
by reason of Applicant’s” failure to follow the permit Terms
and Conditions.
6342 KAAHUMANU v. STATE OF HAWAII
The insurance and indemnification/hold-harmless require-
ments are also content-neutral. See Food Not Bombs. See 450
F.3d at 1056 (Kleinfeld, J., concurring, writing for the major-
ity) (holding insurance and indemnification/hold-harmless
requirements to be viewpoint neutral). Nothing in the require-
ments at issue in this case turns on the type of wedding
involved, its religious content, or indeed any content-based
discrimination. Nor does the amount of insurance, or the price
to be paid for it, vary depending on the type of commercial
wedding or the content of what might be said at the wedding.
Compare id. at 1052 (Berzon, J., dissenting).
iv. Conclusion
In sum, we hold that DLNR’s regulation requiring a person
to obtain a permit for commercial weddings on unencumbered
state beaches is narrowly tailored to a significant governmen-
tal interest, is content-neutral, leaves ample alternative spaces
for hosting a wedding, and does not vest too much discretion
in the government official when issuing the permits. We hold
that the limitation on accessories, insurance requirement, and
the indemnification/hold-harmless clause also satisfy the tra-
ditional public forum standard. However, we hold invalid the
grant of discretion to DLNR to revoke, or add terms to, a per-
mit under the least exacting standard of review for a nonpub-
lic forum.
C. Equal Protection and Due Process
[28] Plaintiffs also contend that DLNR’s permitting
requirements violate the Equal Protection and Due Process
Clauses. We disagree.
1. Equal Protection
Plaintiffs contend that the permitting requirements violate
equal protection because they subject commercial weddings,
but not non-commercial weddings, to regulation. They also
KAAHUMANU v. STATE OF HAWAII 6343
contend that the permitting requirements are enforced
unequally, allowing much commercial activity on unencum-
bered beaches without requiring permits for that activity.
We recognize that the right to marry is a fundamental right.
See Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (recogniz-
ing right to marry as “of fundamental importance”). But
DLNR’s regulation of commercial weddings on unencum-
bered state beaches does not impinge on the right to marry.
Freedom of expression is also a fundamental right under the
First Amendment. See McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 336 n.1 (1995) (listing the “right of free
speech” as a fundamental right). But for the reasons given
above, DLNR has not violated the First Amendment rights of
Plaintiffs. We therefore do not subject DLNR’s regulation of
commercial weddings to the hard-to-satisfy strict scrutiny test.
Rather, we apply the more lenient rational basis test.
The record in this case makes clear that commercial beach
weddings in Hawai’i are an important business. DLNR began
requiring permits for commercial weddings on August 1,
2008. In a declaration signed a year later, on August 8, 2009,
the Chairperson of the Board of DLNR stated that “commer-
cial wedding operators have applied for and received permits
for over 7,000 events.” The state has provided a declaration
of a “supervising land agent” employed by DLNR who states,
“The department is aware that non commercial weddings are
occasionally conducted on state unencumbered beaches. The
department does not know the exact number but believes it is
relatively small.” Plaintiffs have not provided any evidence of
the number of non-commercial weddings performed on unen-
cumbered beaches. Given the large number of commercial
beach weddings, and the relatively small (though undeter-
mined) number of non-commercial beach weddings, DLNR
clearly has a rational basis to regulate commercial beach wed-
dings but to leave non-commercial beach weddings unregu-
lated.
6344 KAAHUMANU v. STATE OF HAWAII
Plaintiffs argue for the first time on appeal, without sup-
porting evidence in the record, that DLNR enforces its permit
requirement only for commercial weddings, leaving the per-
mit requirement for other commercial activities unenforced.
Plaintiffs have waived that argument by not raising it in the
district court. See GoPets Ltd. v. Hise, 657 F.3d 1024, 1033
(9th Cir. 2011).
2. Due Process
Plaintiffs’ due process argument is based on its contention
that DLNR’s regulation of commercial beach weddings vio-
lates the First Amendment. We have already rejected that con-
tention.
Plaintiffs also raise another due process claim, arguing that
DLNR’s permitting requirement is unconstitutionally vague.
This challenge fails because the statute is sufficiently definite
as applied to commercial wedding organizers and their pro-
spective clients. See Schwartzmiller v. Gardner, 752 F.2d
1341, 1346 (9th Cir. 1984).
Conclusion
We uphold the constitutionality of DLNR’s regulation of
commercial weddings on the state’s unencumbered beaches in
all respects but one. The only provisions that violate the First
Amendment are Paragraphs 18 and 21 of the Terms and Con-
ditions, giving to the Chairperson of the Board of DLNR the
authority to revoke an already issued permit “at anytime and
for any reason in [his or her] sole and absolute discretion,”
and giving to DLNR the authority to add terms and conditions
to an already issued permit such “as it deems necessary or
appropriate.”
AFFIRMED in part, REVERSED in part, and
REMANDED. Costs on appeal to appellees.